The uncertain future of the death penalty in CA

CA has the largest death row population in the Western hemisphere. There are 749 inmates awaiting death, but there hasn’t been an execution since 2006. There would have to be more than one execution, every day, for two years to empty death row. To deal with this issue CA voters were faced with two incompatible initiatives last November to determine the fate of capital punishment. Prop 62 sought to abolish the death penalty, while Prop 66 sought to expedite the process. Prop 66 won by less than 30,000 votes, while Prop 62 lost by a more sizable margin of 850,000 votes.

Prop 62 would have brought CA in line with the rest of the developed world in abolishing capital punishment. It would have repealed the death penalty and replaced it with LWOP as the maximum available punishment for murder. Prop 62 would have retroactively applied to inmates on death row and thus would have eliminated it entirely. In 2012, a similar initiative to abolish the death penalty, Prop 34, lost by approximately 500,000 votes. These recent results demonstrate the majority of CA voters aren’t interested in extracting the ultimate manifestation of retribution from the criminal justice system.

Prop 66 vows to keep the death penalty in place while tweaking the procedures that govern the administration. Prop 66 seeks to speed up the appeals process (currently capital punishment appeals take upwards of 25 years) to a condensed 5-year cap. The day after Prop 66 was passed litigation was filed to block the implementation arguing that the initiative was unconstitutional. The crux of the legal argument is that a 5-year cap is not logistically possible and would lead to further injustices. Lawyers and Courts would be forced to cut corners in their representation and investigation to meet this timeline. The language of Prop 66 also explicitly removes the CA Supreme Court and Appellate Courts from hearing these capital punishment cases. This leads to denying habeas corpus petitions, which effectively denies inalienable constitutional rights and strips death row inmates from their full range of legal options.

The CA Supreme Court stayed the implementation a month later on December 20th. On June 6th the Court heard oral arguments in the case. The Court appears divided during arguments over whether the initiative could require a 5-year deadline for death penalty appeals. The Court has a wide array of options. The Court could strike down Prop 66 (highly unlikely given the longstanding precedence of judicial deference for voter initiatives), or they could remove certain aspects of Prop 66 like the timeline feature of strict appellate procedures. A final decision on the initiative is not expected until August 2017. This blogger had the privilege of attending a guest lecture from Associate Justice Goodwin Liu a few months back and would be very surprised to see the 5-year cap withstand judicial scrutiny.

The administration of the death penalty has changed over time. Before 1937 inmates condemned to death were hanged. 307 CA prisoners were put to death using this method. The CA legislature then changed the method of execution to lethal gas. The gas chamber was installed at San Quentin State Prison in 1938. On December 2nd, 1938 the first execution by lethal gas was conducted. From that date through 1967, 294 inmates were executed by gas at SQ. As a result of various State and Federal Court decisions there were no executions in CA for the next 25 years.

Although the death penalty was swiftly reinstated by voters in a ballot initiative in 1978, executions didn’t resume in CA until April 21st, 1992. In January of 1993, CA law changed again to allow condemned inmates to choose either lethal gas or lethal injection as the preferred method of execution. CA developed lethal gas protocols from other jurisdictions, but there is significant literature that casts a dark cloud over the supposed humanness of lethal injection. As such lethal injection has been declared to violate the 8th amendment ban on cruel & unusual punishment on several occasions since 2006.

Stories of botched lethal injections are among the most horrifying accounts to come across. Bodies convulse uncontrollably as inmates are subject to unimaginable pain. Inmates are paralyzed, but evidence suggests they feel the drugs used to stop the heart burning throughout the body.

The barbarity of modern capital punishment directly contradicts childhood lessons that two wrongs don’t make a right. Moral and practical arguments against the death penalty are equally convincing. It goes without saying, but this blogger is deeply uncomfortable with the current state of capital punishment in CA.

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